House Votes for Bill with No Telecom Immunity

Senate Democratic leaders welcomed the House measure, which offers a compromise on immunity. Under it, carriers could have their cases reviewed in a court cleared to deal with classified material. Phone companies largely have been silent in the past year’s legislative wrangling, since the surveillance program is classified. Companies can’t address charges or press reports without violating secrecy laws.

The House bill’s approach resembles one proposed in failed Senate amendments. “The new House version adopts the basic structure of the Senate-passed bill, but contains added privacy protections,” said Senate Majority Leader Harry Reid, D-Nev. “Now is the time for Republicans to come to the negotiating table so we can resolve the last few issues.”

House Speaker Nancy Pelosi, D-Calif., said carriers may have a right to immunity, but under HR-3773 a judge would make that determination “with due protection for classified information.” She asked why the Bush administration would oppose such probes, wondering aloud if it fears revelations that it didn’t follow proper procedure, or that surveillance done “far beyond anything about which any member of Congress was notified, as is required by law,” she said. A third possibility is that Bush erred in claiming the surveillance requests to be lawful, she said. “None of these alternatives is attractive, but they clearly demonstrate why the Administration’s insistence that Congress provide retroactive immunity has never been about national security or about concerns for the companies,” she said. “It has always been about protecting the Administration.”

Sen. Patrick Leahy, D-Vt., a vocal foe of immunity provisions, praised the House bill. The administration broke the law conducting warrantless surveillance for more than five years, he said. “They got caught, and if they had not, they would probably still be doing it,” Leahy said. He hailed as “fair” the provision putting courts in charge of arbitrating phone company claims. Leahy also took issue with Republican reluctance to negotiate on the House bill.

Civil libertarians lauded the House vote. It “would allow our lawsuit against AT&T to proceed fairly and securely,” said Kevin Bankston, senior staff attorney, Electronic Frontier Foundation. “Amnesty proponents have been claiming on the Hill for months that phone companies like AT&T had a good faith belief that the NSA program was legal,” Bankston said. “Under this bill, the companies could do what they should have been able to do all along: tell that story to a judge.”

“While the bill rejects blanket retroactive immunity for telecoms that assisted with illegal warrantless surveillance, it would allow the companies to use national security information in defending themselves against litigation,” said the Center for Democracy & Technology. ACLU also welcomed the House bill.

The Senate will take up the House bill upon its return March 31 from a two-week break, but negotiations probably will occur during the recess. Pressure for a law has risen since the expiration last month of a short-term surveillance law, the Protect America Act. And all parties agree that he law of the land, the underlying Foreign Intelligence Surveillance Act, needs updating to account for modern technology. Bush has said he will veto any bill lacking retroactive immunity for telecom carriers.

“I continue to be concerned by the president’s insistence that Congress grant telecommunications companies retroactive immunity from lawsuits,” said House Telecom Subcommittee Chairman Ed Markey, D-Mass. Without adequate information on the program, immunity isn’t advisable, he said. “I fully support the House bill’s rejection of calls for blanket immunity,” said Markey.